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Judge slashes Laos coup plot case, exposes secret testimony

By JOSH GERSTEIN

11/15/2010 01:54 AM EST

Federal prosecutors suffered a major setback Friday as a federal judge threw out large portions of an unusual criminal case charging twelve California men with plotting to overthrow the government of Laos.

But the judge who issued the ruling also has some egg on his face: parts of his ruling that he intended to keep secret were actually made public due to a flawed computer technique used to hide them.

In a 44-page opinion, U.S. District Court Judge Frank Damrell faulted prosecutors for shifting theories about the leadership of the alleged military enterprise in the case, which is based in large part on the Neutrality Act--a law with roots in the late 1700s. The judge also ruled that some of the weapons charges were flawed because it was not clear that the defendants actually planned to take possession of firearms inside the United States.

The case drew the attention of the New York Times Magazine and other national news outlets because one of the defendants when charges were filed three years ago was General Vang Pao, a venerated leader of the CIA-backed Hmong resistance in Southeast Asia during the Vietnam War. Prosecutors dropped all charges against the general last year. Another defendant with experience in the Hmong resistance, Youa True Vang, was then fingered by prosecutors as the leader of the planned coup, the judge said. After that defendant agreed to a diversion program that effectively removed him from the case, prosecutors pointed to yet another defendant, Lo Cha Thao, as leader of the purported plot.

"This criminal prosecution can best be described as both uneven and evolving," Damrell wrote. "While the court agrees with the government that the alleged military enterprise or expedition need not be formal, practical, or successful, a sine qua non of such a violation is the existence of an identifiable military enterprise or expedition....In the absence of allegations identifying the relevant military enterprise or expedition, and in the absence of factual allegations that notify each of the eleven defendants for what conduct they are being charged, the individual defendants are unable to either prepare a defense or ensure that they are being prosecuted on the basis of the facts presented to the grand jury."

In a blacked-out portion of his opinion (footnote 8), Damrell says the government's fingering of Thao as leading the plot is inconsistent with testimony someone, apparently a government agent, gave the grand jury. "The government’s assertion appears to be directly contradicted by testimony elicited from its witness before the grand jury, which provided that Colonel Youa True Vang issued [an] explicit order to defendant Lo Chao Thao," Damrell wrote, before recounting the testimony.

The redacted portions of Damrell's opinion also indicate that the defendants accused prosecutors of soliciting perjured testimony before the grand jury about whether the group tried to buy a Stinger missile. In a blacked-out passage, Damrell rejected that claim.

"The government’s questions made clear that no order for a Stinger missile actually took place," the judge wrote. "While defendants dispute the accuracy of the witness’s assertion that the context of the conversations and discussions led him to believe that a Stinger missile was going to be part of an order or orders for weapons, such a dispute involves the weight of the evidence and the merits of the government’s case – a question for the jury, not this court, to decide."

The major surgery Damrell, a Clinton appointee, performed on the indictment could lead to another review of the case by the Obama Justice Department. It gave the Bush-era case a green light shortly after Obama appointees arrived, but there will surely be pressure to consider dropping it before trial.

Friends and allies of the defendants have said their discussions with an undercover agent about acquiring weapons to do battle in their homeland were motivated by news reports about alleged efforts by the Communist Laotian Government to mount a campaign to eradicate armed bands of Hmong living in the mountains of Laos.

In the intentionally-public portion of his opinion, Damrell included a politically-incorrect quote from an 1856 case out of Ohio involving defendants of Irish origin charged with trying to aid Ireland in its battles with the British.

That inquiry is not whether these defendants harbor feelings of deep-rooted hostility to England, and a too ardent desire for the redress of the alleged wrongs of Ireland - not whether, as the result of the almost proverbial warmth and excitability of the Irish temperament, they have been imprudent, or indiscreet in words or actions - not whether their efforts to excite the zeal of their countrymen in the United States may or may not, in its results and developments, prove beneficial to the land of their birth - but whether, from the evidence, there is reasonable ground for the conclusion, that they are guilty of the specific charges against them, or of any other criminal violation of law.